Readers of the bulletin will be aware of the recent discovery, disinterment and identification of what have now been clearly established to be the bones of King Richard III from the site of the former Greyfriars (Franciscan) Church in Leicester. Readers will also be aware of the controversy that has been aroused by the decision to reinter the remains in Leicester Cathedral and may be aware of the proposal that kinsmen of Richard III might bring proceedings for judicial review to challenge this decision.
We have no wish to take sides in this controversy. However readers may be interested in a glimpse of some of the legal issues involved.
It is understood that the remains were disinterred under the authority of a licence granted by the Secretary of State under section 25 of the Burial Act 1857. This section reads as follows:
"25 Bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State
Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial, without licence under the hand of one of Her Majesty's Principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding level 1 on the standard scale."
There are certain other circumstances in which human remains may lawfully be disinterred, although the fact that remains are discovered during archaeological excavations does not in itself authorise their disinterment.
The very helpful account published on the University of Leicester website http://www.le.ac.uk/richardiii explains that the licence obtained from the Ministry of Justice grants permission to the University to exhume the remains stating:
"The remains shall, no later than 31 August 2014, be deposited at Jewry Wall Museum or else be reinterred at St Martin's Cathedral or in a burial ground in which interments may legally take place."
This statement also explains that the application for the licence made clear that if Richard was found his remains would be reinterred at St Martin's.
It is in any case a common law offence to disinter a dead body without lawful authority and it is an offence against ecclesiastical law to remove the remains of the dead from consecrated ground without a faculty.
The Leicester Greyfriars Church was undoubtedly consecrated at the time that the burial took place. In principle consecration is permanent. However, the view must have been taken, when the application was made for an exhumation licence under the 1857 Act, that the site of the church, which had become a car park, was no longer consecrated ground. If the intention is to disinter human remains from consecrated ground and reinter them in a different piece of consecrated ground then an application for a faculty is the appropriate course of action. Had the site of the Greyfriars Church still been consecrated then a faculty would have been required but apparently none was obtained. It is of course clear that, though at one time consecrated, the site of the church had been devoted to wholly secular purposes for many years. Following the dissolution of the friary the church had been wholly demolished to ground level although apparently the foundations are preserved.
It seems surprising that the terms of the licence did not require the reinterment of the remains in consecrated ground, though this is irrelevant in view of the clear intention so to reinter them.
We await the outcome of any judicial review proceedings with interest!
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